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Zetten v. Iowa Board of Cosmetology Arts and Sciences

Court of Appeals of Iowa

September 26, 2018

ASHLEY VAN ZETTEN, Plaintiff-Appellant,
v.
IOWA BOARD OF COSMETOLOGY ARTS AND SCIENCES, Defendant-Appellee.

          Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.

         The plaintiff appeals from the district court's dismissal of her petition for judicial review for failing to serve the board within the required ten-day period.

          Michael M. Sellers of Sellers, Galenbeck & Nelson, Des Moines, for appellant.

          Teresa M. Baustian and David M. Ranscht, Assistant Attorneys General, for appellee.

          Considered by Potterfield, P.J., and Bower and McDonald, JJ.

          POTTERFIELD, PRESIDING JUDGE.

         Ashley Van Zetten appeals the district court's dismissal of her petition for judicial review for failing to serve the Iowa Board of Cosmetology Arts and Sciences within the ten-day window required by Iowa Code section 17A.19(2) (2015).

         Our supreme court has "rejected a standard of strict or literal compliance with section 17A.19(2)," but "substantial compliance with statutory prerequisites is essential for the district court to acquire jurisdiction." Cowell v. All-American, Inc., 308 N.W.2d 92, 94 (Iowa 1981). Iowa Code section 17A.19(2) provides, in pertinent part:

Within ten days after the filing of a petition for judicial review the petitioner shall serve by the means provided in the Iowa rules of civil procedure for the personal service of an original notice, or shall mail copies of the petition to all parties named in the petition and, if the petition involves review of agency action in a contested case, all parties of record in that case before the agency. Such personal service or mailing shall be jurisdictional. . . . Proof of mailing shall be by affidavit. . . .

         We review the district court's dismissal of Van Zetten's petition for judicial review for correction of errors at law. See Strickland v. Iowa Bd. of Med., 764 N.W.2d 559, 561 (Iowa Ct. App. 2009).

         Here, Van Zetten filed a timely petition for judicial review on May 3, 2017. On May 19, the counsel for the board received, via United States mail, a copy of the original notice and petition for judicial review. The original notice incorrectly stated the petition for judicial review was filed April 27, and the petition for judicial review contained an unsigned certificate of mail dated May 3. The envelope containing the items arrived was postmarked May 17, 2017.

         On May 25, the board filed a motion to dismiss, arguing the district court lacked jurisdiction to decide the petition for review because the board had not been sent a copy of the petition within ten days of it being filed.

         The same day, Van Zetten filed a resistance to the board's motion. She attached to her resistance an affidavit of mailing from her attorney's legal assistant, in which the legal assistant avowed she had mailed counsel for the board the original notice and petition for judicial review on May 3, 2017. The legal assistant swore that she mailed a second "courtesy" copy, which included the case number issued by the clerk of court, to the board's counsel on May 17. She further swore that no envelopes or documents had been returned by the United States Postal Service.

         The district court held a hearing on the motion to dismiss. At the hearing, the attorney for Van Zetten made a professional statement that he "observed the envelope with the petition being deposited at the U.S. post office slot." When asked by the court, he indicated he did not observe whether the envelope had ...


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